Richardson v. State

228 S.W.2d 179, 154 Tex. Crim. 422, 1950 Tex. Crim. App. LEXIS 2089

Opinions

WOODLEY, Judge.

Appellant was convicted of the murder of Earl Lee Myers. The killing occurred at a place called Womack’s Cafe in the city of Dallas.

The trouble originated in a quarrel concerning a third party named Rocquemore, having poured out some beer. Rocquemore was banished from the place by appellant. The deceased objected to the language of appellant, after Rocquemore had gone, and appellant pulled his pistol. The deceased grabbed appellant’s hand and was shot and killed in the ensuing scuffle. No weapon was seen in the possession of the deceased and none was found on his body.

Appellant claimed self-defense, which claim was rejected by the jury. His application for suspension of sentence was likewise refused, and the jury found appellant guilty of murder with malice and assessed his punishment at 25 years in the penitentiary.

The trial was had in Criminal District Court No. 2 of Dallas County, the case having been transferred to that court from the Criminal District Court where the indictment was returned.

Judge Henry King is the regular judge of Criminal District Court No. 2, and that court, as well as all other district courts of Dallas County, are within the First Administrative Judicial District. Judge W. A. Morrison, who presided at the trial, is the regular judge of the 20th District Court, within the Third Administrative District. By order of the Presiding Judge of the Third Administrative District, Judge Morrison was assigned to preside in the 95th District Court of Dallas County, beginning on June 20, 1949, and by order of said date he was assigned by the Presiding Judge of the First Administrative District to preside in Criminal District Court No. 2 of Dallas County.

In advance of the trial, appellant filed his motion challenging the right of Judge Morrison to preside at his trial, contending that only Judge Henry King was empowered to preside, and that Judge King was without authority to permit or allow Judge Morrison to preside. We overrule these contentions.

The procedure followed in the assignment of a judge to sit with Judge King is authorized by Article 200a, Sec. 5, Vernon’s R. C. S.

Moreover, Judge Morrison, being a district judge, derived his authority to preside in such court under the provisions of Art. V, Sec. 11, of the Constitution of Texas, and Art. 1916, R. C. S., 1925. Art. 200a, supra, is merely cumulative of other statutes on the same subject. Art. 1916, R. C. S., applies to criminal as well as civil cases. See Randel v. State, 153 Tex. Cr. R. 282, 219 S. W. 2d 689 (694) ; and Haley v. State, 151 Tex. Cr. R. 392, 208 S. W. 2d 378, and cases therein cited.

Appellant filed his eight bills of exception on August 27, 1949. The term of court adjourned on July 2, 1949, the date appellant’s motion for new trial was overruled and sentence pronounced. The 30-day period allowed for filing bills of exception expired prior to the 10th day of August, 1949, on which day an order was signed by the trial judge extending such period for an additional 15 days. The extension order was ineffective for want of authority of the trial judge to grant same after the expiration of the 30-day period allowed by statute, Art. 760, Subdiv. 5, C. C. P.

Moreover, the period as extended expired 45 days after July 2, 1949, and the bills of exception, filed thereafter on August 27, 1949, were therefore not timely filed. In either event, we are not authorized to consider such bills of exception. See Thomas v. State, 144 Tex. Cr. R. 533, 164 S. W. 2d 852; and Turner v. State, 153 Tex. Cr. R. 614, 223 S. W. 2d 236.

The judgment of the trial court is affirmed.

Opinion approved by the court.